Answer ... (a) Procedure, including evidence?
The tribunal’s powers, as they relate to procedure, are derived from the arbitration agreement, the relevant legislation and the applicable procedural rules under the legislation. The tribunal has the power to:
- rule on its own jurisdiction;
- extend the timeframe for filing case statements, pleadings and written statements;
- issue a consent award upon settlement or agreement of the parties; and
- of its own volition, correct in the award any errors in computation, clerical or typographical errors or any errors of a similar nature, and terminate the arbitration proceedings.
With regard to evidence, the tribunal has the power to:
- order the production of evidence;
- administer oaths or take affirmations of parties and witnesses appearing before it;
- determine the admissibility, relevance, materiality and weight of any evidence placed before it; and
- admit relevant evidence such as statements, documents, other information, expert reports and evidentiary documents.
(b) Interim relief?
Under the ACA, the tribunal has the power to order any party to take such interim measures of protection as the tribunal may consider necessary in respect of the subject matter of the dispute and to require any party to provide appropriate security in connection with any measure taken (Section 13). There is no restriction on the types of interim relief which the tribunal can grant; however, in awarding interim relief, the tribunal should be careful to act within the scope of its jurisdiction as determined from the arbitration agreement and the applicable law. Although Section 13 of the ACA confers on the tribunal the power to grant interim relief without recourse to the court, it is doubtful whether the tribunal can enforce compliance with its interim orders, since it has no coercive powers.
The Lagos Arbitration Law contains more detailed provisions concerning the grant and enforcement of interim relief (Sections 21 to 30), which may be sought from either the High Court or the tribunal.
(c) Parties which do not comply with its orders?
Where a party fails or refuses to comply with the tribunal’s orders - for example, to produce documents - the tribunal cannot compel the party to do so, although it may make adverse inferences regarding the failure to comply, if appropriate.
(d) Issuing partial final awards?
Under Article 32 of the Arbitration Rules of the ACA, an arbitrator may make interim, interlocutory or partial awards. Under Article 33 of the Lagos Arbitration Law, the tribunal may make “separate awards on different issues at different times”.
(e) The remedies it can grant in a final award?
The ACA does not stipulate the types of remedies that a tribunal can grant. Based on common law, the tribunal has implied powers to grant the relief sought by a party if it could be granted by a high court. This includes declaratory relief, monetary awards, specific performance and the award of interest. The ACA also gives the tribunal the power to award costs.
In contrast, Section 38 of the Lagos Arbitration Law provides that the parties are free to agree on the remedies that may be granted by the tribunal and specifically empowers the tribunal to make declarations as to any matter to be determined in the proceedings, and to order the payment of sums of money in any currency. In addition, the tribunal is specifically granted the same power as a court to order:
- a party to do or refrain from doing anything;
- the specific performance of a contract (other than a contract relating to land); and
- the rectification, setting aside or cancellation of a deed or other document.
The ACA contains no express provision empowering the tribunal to award interest. However, under the ACA, interest is usually awarded on principal claims at rates established by evidence of the party seeking the award of interest. The award of interest on costs is unusual, but there is no express prohibition against the award of interest on costs.
The Lagos Arbitration Law, by contrast, provides at Section 46 that arbitrators may award interest.